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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
N.UNNI KRISHNAN NAIR
Bipin Gogoi S/o Tankeswar Gogoi – Appellant
Versus
Pradip Bora S/o Late Anil Bora – Respondent
| Table of Content |
|---|
| 1. factual background of the case. (Para 2 , 3) |
| 2. arguments presented by the appellant and respondent. (Para 4 , 5 , 6) |
| 3. trial court's analysis and observations. (Para 7 , 8 , 9) |
| 4. ratio decidendi regarding presumption under section 139. (Para 10 , 11 , 12) |
| 5. final decision and order of the court. (Para 13 , 14 , 15 , 16) |
JUDGMENT :
N. UNNI KRISHNAN NAIR, J.
1. Heard Mr. A. M. Bora, learned Senior Counsel, assisted by Mr. M. S. Hussain, learned counsel, for the appellant. Also heard Mr. S. Nawaz, learned Amicus Curiae, appearing for the respondent.
2. The challenge in the present appeal is to the Judgment dated 30.08.2013, passed by the learned Judicial Magistrate First Class, Golaghat, Assam in CR Case No. 334/2012, dismissing the complaint filed by the appellant, herein, under Section 138 of the Negotiable Instruments (N.I) Act.
3. The facts in brief requisite for adjudication of the present appeal is noticed hereinbelow:
The appellant projects that he is the owner of Green Reed Lodge, situated at Kohara, and the respondent, who is a film director, along with his team, had stayed in the lodge of the appellant from 05-11-2011 till 10-11-2011 and then w.e.f., 25-11-2011
The presumption under Section 139 of the Negotiable Instruments Act regarding legally enforceable debt is rebuttable; the failure to prove such debt leads to liability under Section 138.
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof lies on the accused to provide a probable defense.
The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of i....
The presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act is rebuttable, but the burden lies on the accused to provide evidence to the contrary.
The presumption in favor of the complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
Dishonour of cheque – Whereas prosecution must prove guilt of an accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is preponderance of probabilities.
The issuance of a cheque carries a presumption of consideration, which is rebuttable by the accused. Failure to prove the non-existence of a debt results in liability under Section 138 of the NI Act.
The presumption under Section 139 of the Negotiable Instruments Act is mandatory, placing the burden on the accused to rebut the existence of a legally enforceable debt.
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